On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-6641-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Gilroy and Baxter.
Defendants Michael J. Blanchard and the City of Jersey City appeal from a November 3, 2006 order that denied their motion for remittitur or, in the alternative, for a new trial on damages. We affirm.
On June 5, 2003, plaintiff Carol Caruso*fn1 was proceeding north on Monmouth Street in Jersey City when her vehicle was struck by a sport utility vehicle that was being operated by Jersey City Fire Department battalion chief Michael Blanchard. Blanchard had activated the vehicle's lights and siren. Blanchard, and a number of fire trucks that were following him, were en route to a reported fire at a high-rise building in Jersey City. Although other vehicles pulled over to let the emergency vehicles pass, plaintiff apparently did not hear the sirens or see the red flashing lights. She proceeded into the intersection where her vehicle collided with the emergency response vehicle that Blanchard was operating.
As a result of the collision, plaintiff alleged that she sustained multiple contusions and an injury to her left shoulder. She was evaluated at a local hospital, where x-rays were negative and she was discharged the same day.
Plaintiff underwent a course of physical therapy with Dr. Monica Mehta for a period of six months, which Dr. Mehta described in her testimony. Defendants objected to Mehta's testimony, arguing that neither in plaintiff's answers to interrogatories nor in Mehta's treatment notes, was there any opinion by Mehta of permanency. After plaintiff's counsel assured the judge that there would be no testimony from Mehta as to permanency, the judge overruled the objection. The cross-examination of Mehta was limited to establishing that: plaintiff never lost consciousness after the accident; Mehta is not board-certified; she sees sixty patients per week; of the fifty times Mehta has testified in court, all but two were for a plaintiff; and Mehta was paid by plaintiff to appear in court on plaintiff's behalf.
Despite six months of physical therapy with Dr. Mehta, plaintiff continued to experience pain in her left shoulder and an inability to lift heavier objects, perform household chores and work in the family business.*fn2 As a result, she sought treatment from Dr. Leonard Jaffe, an orthopedic surgeon, in January 2004. Jaffe treated plaintiff conservatively at the beginning, administering anti-inflammatory injections to her left shoulder. When that course of treatment was unsuccessful, Dr. Jaffe performed surgery on plaintiff's rotator cuff in February 2004. During the course of the surgery on plaintiff's shoulder, Jaffe observed a torn muscle that was "catching beneath the archway where [the muscle] exits in the shoulder." He also discovered during the surgery that plaintiff had a "frozen shoulder," which the MRI exam that was performed prior to the surgery had not disclosed. During the surgery, Jaffe used a saw to make a cut in one of the muscles that allowed "the head of the bone to pass beneath it." He also removed the "torn disk" that "sits between the collar bone and the tip of the shoulder."
Jaffe's final examination of plaintiff occurred in February 2005, a year after the surgery. At that time, plaintiff was still in pain and Jaffe diagnosed a five to ten percent limitation in the range of motion of plaintiff's left shoulder. He opined that both the pain and the reduction in range of motion were permanent. Defendants did not call any medical experts to dispute the permanency testimony offered by Dr. Jaffe.
Plaintiff testified that after the surgery, she remained unable to lift her arm over her head, or lift or carry heavy objects. She explained that the pain and limitation of motion in her shoulder left her dependent on her family for the usual routines of her daily life, which included cleaning the house, shopping for food, and doing the laundry. Plaintiff's dependence on her family strained her marital relationship and lessened her own quality of life. She also testified that she and her husband do not go out with other couples because she is "always in pain" and does not "feel good." For an unspecified time before and after her surgery, she was forced to sleep sitting up in a chair, rather than in bed with her husband. She also described an impact on marital relations due to "bad headaches and . . . neck[,] . . . back and shoulder pain [that] affected us."
Plaintiff's husband testified that for a period of six months before the surgery, his wife's shoulder injury interfered with her ability to use the bathroom, forcing him to assist her with toileting functions during that period. In addition, the jury was presented with photographs of a permanent one and one-half inch scar at the surgical site.
During the trial, the judge sustained plaintiff's objection to defendants' attempt to call a firefighter named Jablonski to testify. Jablonski was aboard fire truck 6, which was behind Blanchard's lead vehicle on the way to the fire. Defendant attempted to call Jablonski to testify that not only were sirens and flashing lights operating on Blanchard's vehicle, but all of the ladder trucks that were following behind Blanchard had activated their flashing lights and air horns. Plaintiff objected, arguing that Jablonski's name was not mentioned in any of the discovery provided by defendants. After reviewing defendants' interrogatory answers, the judge sustained plaintiff's objection and barred Jablonski's testimony.
The jury returned a verdict in plaintiff's favor, finding defendants fifty-five percent responsible for the happening of the accident and plaintiff forty-five percent responsible. The jury awarded damages to Caruso in the amount of $740,000 and awarded no damages to her husband on his per quod claim. After molding the verdict to reflect plaintiff's comparative negligence, the judge entered judgment in favor of plaintiff in the amount of $407,000.
Defendants filed a motion for a new trial limited to the issue of damages or, in the alternative, for remittitur. In support of their motion, they argued that the award of $740,000 was so high as to shock the conscience and justify either a remittitur or a new trial on damages. Judge O'Connor denied the motion in an oral opinion:
The defendant has provided some comparable verdicts that [they] argue that the court should consider, the highest of which is one for $320,000. . . . I am not at all persuaded by verdicts in other cases. I cannot possibly make comparison to the facts in those cases. I did not have the opportunity to see the plaintiff in those cases.
But I will observe that the plaintiff in this case I found to be a very forthright witness. She did not, in my opinion, in any way puff or exaggerate her complaints. In fact, if anything, she was very conservative in describing the complaints that she had. She did testify that she was not able to do a lot of things that she had done previously. She was a self-sufficient person. She could do a lot of chores around the house, [and] didn't have to depend on anyone for that.
Subsequent to this accident, all of that changed. She had to depend on her husband for the first . . . six months to even go to the bathroom, could not even go to the ...